Establishing Duty of Care in Negligence - Report Example

Establishing Duty of Care in Negligence Number Department Introduction In the English Tort Law, a breach of duty of care is essential for the determination of liability in negligence. In turn, the duty of care is premised upon several legal principles which must therefore be taken into consideration during the determination of liability in negligence. Specifically, a breach of duty of care takes place when an individual or a corporate entity to act up to the standard that had been stated or implied in the contract. To comprehensively understand liability in negligence and its determination, it is important that some of the principles that are factored in the test are considered, as shall be discussed in the ensuing discourse. Discussing the Test for Establishing a Breach of Duty of Care in Negligence According to McBride (2004, pp. 417 – 441), First, when determining the liability in negligence, it is important to consider whether the defendant owed the plaintiff a duty of care. The phrase duty of care refers to a legal obligation that is imposed on a natural or a legal person, requiring the person to adhere to a standard of reasonable care while attending to duties that could foreseeably be injurious to others. This may happen directly when the litigant enters into a contract with the defendant. Secondly, this may happen when the duty of care is to be assumed by the representative of the defendant. In this case, the representative may be an employee, the legal person emissary or a kinsman. In this case, the defendant assumes vicarious liability, a form of strict and secondary liability which exists under the doctrine of agency-respondeat superior. As is stipulated by common law, the defendant assumes liability because he is superior and therefore assumes responsibility of the/ any third party who acts as the subordinate and had the duty or the ability to control the activities of a violator (Duncan and Craig, 2011, p. 451). The case, Panorama Developments Ltd. v. Fidelis Furnishing Fabrics Ltd. [1971] 2 QB 711 underscores the reality of vicarious liability. In this case, the Fidelis Furnishing Fabrics Ltd. Secretary had fraudulently hired cars for personal use outside the knowledge of the managing director. The company Secretary, Mr. Bayne had hired the automobiles from Belgravia Executive car Rental which had belonged to Panorama Development. To this end, Mr. Bayne used Fidelis Furnishing Fabrics Ltd’s paper and made it clear that he wished to hire several Jaguar and Rolls-Royce brands in the absence of his company’s managing director. It later on emerged that Mr. Bayne was lying and merely subjecting Panorama Development to a fraud. Resultantly, Belgravia Executive Car Rental sustained an outstanding 571 sterling pounds for the cars that had been fraudulently hired, even though Mr. Bayne had been prosecuted and subjected to a prison sentence. The court of law established that the company secretary wielded the administrative responsibilities needed for the authority to hire cars and used to routinely enter into contracts in the company’s name. Again, it is sacrosanct that there is an actual breach of duty on the side of the defendant. A breach of duty occurs when the natural or legal person bearing the duty of care toward another person (natural or legal) fails to fulfill the standards that had been stated or implied in the contract or agreement. This breach of duty may be counted as negligence if it leads to personal injury. The breach of duty can also lead to a loss of financial value. In this regard, it will be taken into consideration, whether the breach of duty was a duty of reasonable care or based on premises liability or professional liability. For instance, in the event that the breach of duty took place within the confines of professional liability, then the relationship between the plaintiff and the defendant may be employee-employer or client-producer. In the employee-employer relations, the employer fails to enforce the standards that had been spelt out in the contract or agreement for there to be this breach of duty. The commonest manifestation of this breach of duty is the premature and willful termination of the contract or the contravention, withdrawal or re-drawing of terms and conditions initially spelt out in the agreement (Goldberg and Zipursky, 2010, p. 917). Malik (2010, p. 471) and Hall (2012, p. 505), the case, Governing Body of Beardwood Humanities College v Ham UKEAT/0379/13/MC aptly exemplifies this principle. As a head of science in the employer school, the claimant in this case had been dismissed from work, as a result of an investigation into four offences that had been committed at the workplace. The court found that the claimant to have been dismissed unfairly because: the allegations that had been leveled at the employee did not satisfactorily amount to gross misconduct as had been spelt out in the disciplinary policy; the original decision to dismiss the employee was arrived at, in the absence of the employee and was therefore unfair; and the claimant had served for 17 years and the charges brought against her and the action taken against her did therefore not amount to a reasonable response. There is also the aspect of foreseeability. In this case, there must be conformance with the Lord Atkin’s Test. The Lord Atkin’s Test stipulates that liability may arise when the tortfeasor is able to reasonably foresee and understand that his actions or inactions would injure another person or the person he has entered a contract with. In this light, it is important that reasonable care is taken to ward off or abate omissions or acts that can be reasonably foreseen and are likely to be harmful or injurious on another person or party (Harvard Law Review, 1999, pp. 145 – 146). One of the cases that expressly illustrate this situation is the Hale v. London Electrical Board [1965], HL. In this case, London Electrical Board had its workmen working on underground cables. The employees dug a hole and laid a long-handle hammer across the pavement. A blind pedestrian nevertheless tripped over the long-handle hammer and sustained serious injuries. In this case, the court held London Electrical Board liable for the injury. This is because London Electrical Board’s employees had taken sufficient measure to warn off sighted people but this was not enough. It was commonly known that a significant number of blind people walked along the street’s pavement, unaided. The aspect of foreseeability comes into play because London Electrical Board owed duty of care to the blind, yet it sidestepped this consideration (Grey, Thomas C., 2001, p. 1225 & Porat, 2011, p. 82). According to Tingle (2002, pp. 1128 – 1130), the element of standard of care must also be factored when determining duty of care in negligence. The phrase, standard of care refers to the degree of caution or prudence that is to be observed by the individual who assumes the duty of care. The person assuming the duty of care becomes a tortfeasor when his actions or inactions fail to actualise the agreement or contract according to the required standards. The case, Vaughan v Menlove (1837) 132 ER 490 (CP) clearly illustrates the importance of standard of care in tort. In this case, Menlove had built a haystack bordering Vaughan’s land. Despite the presence of the precautionary chimney, Vaughan’s hay still caught fire. The matter had been compounded by the fact that Menlove had been warned several times, five weeks before the fire. Vaughan’s land and cottages had been burnt down, eventually. The jury found the defendant, Menlove negligent. Menlove launched an appeal, arguing that he acted bona fide to appropriate judgement and that if this was established, he would not be found negligent. Nevertheless, the appeal court held that the defendant was negligent and being the man of ordinary prudence, reasonable standard had accorded him duty of care. In a separate vein, it is important to factor in the presence of the actual harm. According to OSullivan (2011, pp. 291 – 294), the harm must have stemmed from the action or inaction by the tortfeasor. Consequential harm or damage must also be proven in this case. The phrase consequential harm or damages refers to damages or harm that can be proven to have occurred because of the action or the inaction of the tortfeasor. In this case, the court of law will have to disassociate compensatory from consequential damages. This reality is underscored by the case, Hadley v Baxendale [1854] EWHC J70. In this case, the crankshaft of Mr. Hadley’s steam engine broke down, thereby prompting Hadley to contact W. Joyce & Co. for a newer crankshaft. Similarly, Hadley contacted and contracted with Baxendale and Or (also known as Pickford & Co.) to transport and deliver Haley’s crankshaft to W. Joyce & Co. However, Baxendale and Or failed to deliver the crankshaft in time, and thereby causing Hadley losses. The jury awarded Hadley 25 Sterling Pounds when the matter was taken up for litigation. Baxendale and Or appealed, arguing that it was not aware that Haley would suffer the damages. In the appeal, Justice Baron E. H. Alderson in the Court of Exchequer disallowed Hadley the lost profits but extended the compensation for the losses incurred. Justice Alderson held that W. Joyce & Co. could only be held liable for damages that were foreseeable or if Hadley had made his unique circumstances known in advance. References Duncan, Meredith J and Craig, Jacquelyn, 2011, “Personal tort law”, SMU Law Review, 64 (1), p. 451 Goldberg, John C.P and Zipursky, Benjamin C., 2010, “Torts as Wrongs”, Texas Law Review, 88 (5), p. 917 Grey, Thomas C., 2001, “Accidental torts”, Vanderbilt Law Review, 54 (3), p. 1225 Hall, Geoff R, 2012, “Something Borrowed: A Sensible Definition of a Banks Duty of Care in Tort to Non-Customers”, Banking & Finance Law Review, 27 (3), p. 505 Harvard Law Review, 1999, “Negligence. Duty of Care. Gratuitous Bailors Duty to Inspect”, Harvard Law Review, 43 (1), pp. 145 - 146 Malik, Yusuf, 2010, “Tort law - negligence - landlords duty of care to tenants in Tennessee”, Tennessee Law Review, 77 (2), p. 471 McBride, Nicholas, 2004, “Duties of Care: Do They Really Exist?” Oxford Journal of Legal Studies, 24 (3), pp. 417 – 441 OSullivan, Janet, 2011, “Building Contracts-Is There Concurrent Liability in Tort?” The Cambridge Law Journal, 70 (2), pp. 291 – 294 Porat, Ariel, 2011, “Misalignments in tort law”, Yale Law Journal, 121 (1), p. 82 Tingle, John, 2002, “Establishing breach of the duty of care in the tort of negligence”, British Journal of Nursing, 11 (17), pp. 1128 - 1130 Read More